If a non-member facilitator runs meeting, is that person the "presiding officer" allowing the ranking elected officer to vote?

[Guest Apple]

Small board had to vote between choice A and choice B (locations for an event).  Since it's a small board and we HAD to pick a location, the vote was handled like an election (vote for A or B) rather than a Motion.

President was absent, and instead of the VP running the meeting, it was run by someone who is a non-voting advisor to the group.  Since feelings were strong on both sides, none of the 12 Board members present objected.

Vote (the advisor handed out paper for written ballots) was for location A; the tally was announced but I couldn't hear it clearly at the far end of the tables.  I asked the person sitting next to me, and she couldn't tell me either.

After the meeting was adjourned, I asked the advisor what the tally was.  She said it was 7-6, because the President had left her ballot in advance, to be used to break any potential tie.

As I understand the Rules, there's no way in hell that the President could leave a ballot in advance to be executed at an in-person meeting (45:56, and 46:49c).

1) My understanding is that the tie should have been announced, and the 12 Board members present would then sit there and vote repeatedly until somebody either changed their vote or abstained.

Is this correct?

2) Should the VP have handed in a ballot (creating a tie) in the first place?  Per https://robertsrules.com/frequently-asked-questions/, "However, the impartiality required of the presiding officer of any other type of assembly (especially a large one) precludes exercising the rights to make motions or speak in debate while presiding, and also requires refraining from voting except (i) when the vote is by ballot, or (ii) whenever his or her vote will affect the result."   On this point, my first question is whether the VP was the "presiding officer" when the advisor was running the meeting.  Per the above, if she was the presiding officer, then she was required to refrain from voting except (i) if it was a ballot vote (on this prong, she was allowed to vote) *OR* (ii) whenever her vote will affect the result.  Which it did here.  Without her vote, the tally would have been 5-6, an unequivocal conclusion.  In contrast, since this vote was presented like an election not a motion, the tie meant that neither site was either adopted or rejected, which is certainly not the same result as an unequivocal conclusion.  Her vote creating a tie also led directly to the impermissible counting of an absentee ballot.

3) Having found out only after the meeting was over about the absentee ballot being counted, my understanding is that this is a breach of the rules of a continuing nature (23:6, example d, referring to 25:9) and a point of order can be raised at any time that the breach is still in effect (in this situation, at the earliest opportunity, before event planning proceeds to the point that a site change is impractical).

4) If the original 7-6 vote is declared invalid, does that mean that an entirely new vote is called, where everyone who shows up for the re-vote meeting gets to vote, or does the president's absentee vote get thrown out and the 12 Board members who were present at the special meeting start thrashing it out?  Or would that be 11 people voting, if the VP is the presiding officer and is obligated to break the tie?

Thank you all.  This is a mess.

Apple

[Joshua Katz]

On 12/8/2023 at 3:44 AM, Guest Apple said:

1) My understanding is that the tie should have been announced, and the 12 Board members present would then sit there and vote repeatedly until somebody either changed their vote or abstained.

 

Yes. Only people present the meeting, unless your bylaws allow for voting in the manner the president did (do they?) may vote. And if the president were able to vote absentee (something RONR warns against - mixing absentee votes with in person votes) then her ballot should have been counted with the remainder of the ballots as she was not presiding.

On 12/8/2023 at 3:44 AM, Guest Apple said:

Should the VP have handed in a ballot (creating a tie) in the first place? 

The VP was not presiding, so had no reason to be impartial.

On 12/8/2023 at 3:44 AM, Guest Apple said:

3) Having found out only after the meeting was over about the absentee ballot being counted, my understanding is that this is a breach of the rules of a continuing nature (23:6, example d, referring to 25:9) and a point of order can be raised at any time that the breach is still in effect (in this situation, at the earliest opportunity, before event planning proceeds to the point that a site change is impractical).

 

It seems to me that illegal votes on a matter that can still be stopped can be timely objected to even after the meeting, but let's see what others think.

On 12/8/2023 at 3:44 AM, Guest Apple said:

4) If the original 7-6 vote is declared invalid, does that mean that an entirely new vote is called, where everyone who shows up for the re-vote meeting gets to vote, or does the president's absentee vote get thrown out and the 12 Board members who were present at the special meeting start thrashing it out?  Or would that be 11 people voting, if the VP is the presiding officer and is obligated to break the tie?

 

You would need to vote again. Whoever is there gets to vote, and whoever is not there does not. Whoever is presiding will vote only if it would change the outcome. Such a person, by the way, is not obligated to vote when it would change the outcome, but simply may.

[Josh Martin]

On 12/8/2023 at 2:44 AM, Guest Apple said:

Small board had to vote between choice A and choice B (locations for an event).  Since it's a small board and we HAD to pick a location, the vote was handled like an election (vote for A or rather than a Motion.

Assuming for the sake of argument it is correct the board had to pick a location (perhaps the board had already decided to hold this event, or it is required by the organization's rules, or whatever), I believe this was the correct way to handle it, although additional choices for locations could have been proposed.

On 12/8/2023 at 2:44 AM, Guest Apple said:

President was absent, and instead of the VP running the meeting, it was run by someone who is a non-voting advisor to the group.  Since feelings were strong on both sides, none of the 12 Board members present objected.

This is permissible.

"In certain instances in an ordinary society—for example, if an adjourned meeting or a special meeting (9) must deal with a problem that has intensely divided the organization—it may be that such a meeting can accomplish more under the chairmanship of an invited nonmember who is skilled in presiding. (Sometimes this may be a professional presiding officer.) If the president and vice-president(s) do not object, the assembly, by majority vote, can adopt an incidental main motion to effect such an arrangement for all or part of a session. This motion is a question of privilege affecting the assembly (19). Alternatively, the rules may be suspended to authorize this type of temporary appointment, even over the objection of the president or a vice-president. Cf. 62:13–14." RONR (12th ed.) 47:13

On 12/8/2023 at 2:44 AM, Guest Apple said:

After the meeting was adjourned, I asked the advisor what the tally was.  She said it was 7-6, because the President had left her ballot in advance, to be used to break any potential tie.

As I understand the Rules, there's no way in hell that the President could leave a ballot in advance to be executed at an in-person meeting (45:56, and 46:49c).

This is correct. Absentee voting is not permitted unless authorized in the organization's bylaws or applicable law. Further, RONR strongly advises against permitting a system in which absentee votes are mixed and matched with votes cast at a meeting.

On 12/8/2023 at 2:44 AM, Guest Apple said:

1) My understanding is that the tie should have been announced, and the 12 Board members present would then sit there and vote repeatedly until somebody either changed their vote or abstained.

Is this correct?

Yes.

In the alternative, if the schedule would allow for a delay, a solution might be to postpone this item to the next regular meeting, or to an adjourned meeting, perhaps to a time when all members could be present.

On 12/8/2023 at 2:44 AM, Guest Apple said:

2) Should the VP have handed in a ballot (creating a tie) in the first place?

Yes, for three reasons.

First, the Vice President was not the "presiding officer" at the time. You specifically stated that "the President was absent, and instead of the VP running the meeting, it was run by someone who is a non-voting advisor to the group." As such, this non-voting advisor was the presiding officer.

Further, even if the Vice President was presiding, the size of the board appears to be such that it would be appropriate to use the "small board rules," which permit the presiding officer to vote in all cases.

"In a board meeting where there are not more than about a dozen members present, some of the formality that is necessary in a large assembly would hinder business. The rules governing such meetings are different from the rules that hold in other assemblies, in the following respects: ...

7) If the chairman is a member, he may, without leaving the chair, speak in informal discussions and in debate, and vote on all questions." RONR (12th ed.) 49:21

Further, even if the Vice President was presiding, and the board chose not to use the small board rules, then the rules specifically provide that the presiding officer may vote if the vote was taken by ballot or if the chair's vote would affect the result, both of which are applicable here. The reason for this rule is to maintain the presiding officer's appearance of impartiality - which isn't a problem if the vote is taken by ballot.

On 12/8/2023 at 2:44 AM, Guest Apple said:

On this point, my first question is whether the VP was the "presiding officer" when the advisor was running the meeting.

The Vice President was not the presiding officer. The presiding officer is, as the term suggests, the person who is presiding - so the advisor, in this instance.

On 12/8/2023 at 2:44 AM, Guest Apple said:

Her vote creating a tie also led directly to the impermissible counting of an absentee ballot.

I would dispute this and would suggest that it was the advisor's error which led directly to the impermissible counting of an absentee ballot. It's not the Vice President's fault that the advisor decided that absentee ballots could be counted.

On 12/8/2023 at 2:44 AM, Guest Apple said:

3) Having found out only after the meeting was over about the absentee ballot being counted, my understanding is that this is a breach of the rules of a continuing nature (23:6, example d, referring to 25:9) and a point of order can be raised at any time that the breach is still in effect (in this situation, at the earliest opportunity, before event planning proceeds to the point that a site change is impractical).

Yes, I concur that including an absentee ballot in the count, when such a ballot would affect the result, is a breach of a continuing nature, and that a Point of Order may be raised at any time during the breach.

I would note that I don't think the fact that "a site change is impractical" actually ends the breach from a parliamentary matter, although it may well be from a practical matter it is best to let sleeping dogs lie at that point. I do not think the breach has truly ended until the event is over.

On 12/8/2023 at 2:44 AM, Guest Apple said:

4) If the original 7-6 vote is declared invalid, does that mean that an entirely new vote is called, where everyone who shows up for the re-vote meeting gets to vote, or does the president's absentee vote get thrown out and the 12 Board members who were present at the special meeting start thrashing it out? 

The vote must be redone one way or another, because even if you can identify the President's vote and throw it out (which shouldn't be possible in a ballot vote, but apparently was possible here, due to how the ballot vote was botched), then you have a tie, and you need to vote again for that reason. All members who are present at the new meeting have the right to vote, whether or not they were present at the original meeting.

On 12/8/2023 at 2:44 AM, Guest Apple said:

Or would that be 11 people voting, if the VP is the presiding officer and is obligated to break the tie?

No, that's not how it works. In a ballot vote, the presiding officer (whether it's the President or the VP, or whoever) votes along with everyone else, rather than holding back to make or break a tie. To force the presiding officer to wait to see if their vote is needed deprives the presiding officer of the right to the secrecy of their ballot.

Further, under the small board rules, the presiding officer should vote along with the other members anyway.

On 12/8/2023 at 5:48 AM, Joshua Katz said:

Whoever is presiding will vote only if it would change the outcome. Such a person, by the way, is not obligated to vote when it would change the outcome, but simply may.

This is generally correct, but I would note that:

1.) This appears to be a small board; and

2.) The vote was originally taken by ballot, and presumably will be taken by ballot again.

Edited December 8, 2023 at 01:06 PM by Josh Martin

[Joshua Katz]

I stand corrected by Mr. Martin and had missed these two factors. Maybe I should have delayed my answer until after coffee was available. 

I note that, if the VP had not voted, apparently, the president's vote would have tied the matter. But who knows? Maybe the presiding officer wouldn't have counted it because it wasn't breaking a tie. Hard to say when you're this far from the golden path. In that case, there would have been a decisive answer, as I understand matters, which is why our OP is saying the VP's vote mucked things up. But the same is true for each individual's vote, so I don't think it matters in the end. 

[Guest Apple]

Wow, that is an AMAZINGLY fast reply.  Thank you!

You are correct that our Bylaws do not permit absentee voting.  At some point during Covid (I was off the Board for years, and was just appointed to fill an unexpired term last month) we apparently started allowing hybrid in-person and speakerphone attendance, including participating in votes while attending by speakerphone.  This isn't in the Bylaws, but at least it means that everyone voting is listening to and can participate in the discussions.  But last night the president was not present in any manner and had dropped off a paper ballot in advance.  

What makes it worse is, the President picked the special meeting date herself, seven weeks in advance, and the sole purpose of the special meeting was to have basically competing presentations on the benefits of locations A and B in order to make the most informed vote, and to hold that vote.

So your answer to my question #1 is definitely in accordance with our Bylaws re no absentee voting.

We actually have a holiday social for the Board and members scheduled for next Thursday - I'm wondering if we can call another special meeting, to coincide with the social, to repeat the vote. I admit I'm still mad that we didn't know about the absentee ballot last night while the meeting was still on, and raise heck right then - voting again de novo gives the president's "side" a second opportunity to have everyone present in person.

Oh, looks like our Bylaws say we *could* call such a meeting, at least - special meeting may be called at any time... on written request of two Directors addressed to the President... notices mailed not less than one week prior to date of date OR shall be alerted by phone not less than 3 days prior.

The President is also in violation of the Bylaws by failing to appoint a parliamentarian at the first meeting of the new fiscal year.  Among other things.

[Joshua Katz]

On 12/8/2023 at 9:48 AM, Guest Apple said:

We actually have a holiday social for the Board and members scheduled for next Thursday - I'm wondering if we can call another special meeting, to coincide with the social, to repeat the vote. I admit I'm still mad that we didn't know about the absentee ballot last night while the meeting was still on, and raise heck right then - voting again de novo gives the president's "side" a second opportunity to have everyone present in person.

Oh, looks like our Bylaws say we *could* call such a meeting, at least - special meeting may be called at any time... on written request of two Directors addressed to the President... notices mailed not less than one week prior to date of date OR shall be alerted by phone not less than 3 days prior.

 

Well, it's not in order to simply call a meeting to do something that is already done. You'll need to include in the call, I'd think, the business of deciding if the vote was properly conducted via point of order.

[Gary Novosielski]

On 12/8/2023 at 8:02 AM, Josh Martin said:

On 12/8/2023 at 6:48 AM, Joshua Katz said:

Whoever is presiding will vote only if it would change the outcome. Such a person, by the way, is not obligated to vote when it would change the outcome, but simply may.

This is generally correct, but I would note that:

1.) This appears to be a small board; and

2.) The vote was originally taken by ballot, and presumably will be taken by ballot again.

3.)  In the original scenario the presiding offer was not a member, and therefore could not vote, no matter what.

[Josh Martin]

On 12/8/2023 at 10:00 AM, Gary Novosielski said:

3.)  In the original scenario the presiding offer was not a member, and therefore could not vote, no matter what.

Yes, I agree. I believe Mr. Katz and I were discussing the future meeting where the assembly would "revote." It may be that at that meeting, a member will be presiding.

On 12/8/2023 at 8:48 AM, Guest Apple said:

We actually have a holiday social for the Board and members scheduled for next Thursday - I'm wondering if we can call another special meeting, to coincide with the social, to repeat the vote.

Assuming it is possible to provide sufficient notice under your bylaws for a special meeting next Thursday (which appears to be the case), yes, this could be done.

I would note that, at the meeting, it will be necessary to first make a determination that the President's vote was invalid. A member could raise a Point of Order regarding that matter, followed by an appeal if necessary.

On 12/8/2023 at 8:48 AM, Guest Apple said:

I admit I'm still mad that we didn't know about the absentee ballot last night while the meeting was still on, and raise heck right then - voting again de novo gives the president's "side" a second opportunity to have everyone present in person.

I guess I don't really see what's wrong with this. It seems ideal for everyone to be present.

It also may well be that's what would have ended up happening anyway. If the board was deadlocked and a missing member would make a difference, it would seem quite logical for the assembly to set an adjourned meeting when everyone could be present, in order to break the tie.

Edited December 8, 2023 at 05:44 PM by Josh Martin

[Gary Novosielski]

On 12/8/2023 at 12:43 PM, Josh Martin said:

Yes, I agree. I believe Mr. Katz and I were discussing the future meeting where the assembly would "revote." It may be that at that meeting, a member will be presiding.

It surely may be.